working paper no. 23
Human Rights*
by Jack Donnelly
Graduate School of International Studies
University of Denver
2201 South Gaylord Street
Denver, CO 80208 USA
[email protected]
Posted on 14 January 2005
http://www.du.edu/gsis/hrhw/working/2005/23-donnelly-2005.pdf
© 2005 Jack Donnelly. All rights reserved.
* Forthcoming in John Dryzek, Bonnie Honig, and Anne Phillips, eds., Oxford Handbook of Political Theory (Oxford University Press, 2006). If
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Human Rights
Jack Donnelly
Graduate School of International Studies
University of Denver
[email protected]
Forthcoming in John Dryzek, Bonnie Honig, and Anne Phillips, eds., Oxford
Handbook of Political Theory (Oxford University Press, 2006). If citing this on-line
version, please note the existence of this forthcoming paper-published volume.
Human rights are, literally, the rights we have simply because we are human. They are equal rights:
one either is or is not a human being, and thus has exactly the same human rights as every other
human being. They are inalienable rights: one cannot stop being a human being, and therefore
cannot lose one's human rights, no matter how horribly one behaves nor how barbarously one is
treated. Human rights are also universal rights, held by every human being, everywhere. This
chapter offers a conceptual analysis of human rights, a brief account of their historical evolution,
and an introduction to some leading theoretical controversies.
1. THE PRACTICE OF HUMAN RIGHTS1
Human rights are a complex and contested social practice that organizes relations between
individuals, society, and the state around a distinctive set of substantive values implemented through
equal and inalienable universal rights.
A. Human Rights as Rights
"Right" has two principal moral and political senses, rectitude and entitlement, characteristically
expressed in talk of something being right (or wrong) and someone having a right. Denying you
something that it would be right for you to enjoy in a just world is very different from denying you
something -- even the same thing -- that you have a right to enjoy. Claims of rights ordinarily
"trump" utility, social policy, and other grounds for action (Dworkin 1977, xi, 90). And you can do
special things with rights.
Adam's right to x with respect to Beth is not reducible to Beth's correlative duties. Should Beth fail
to discharge her obligations, besides violating standards of rectitude and harming Adam, she violates
his right. This makes her subject to special remedial claims. Furthermore, as the language of
"exercising" rights suggests, Adam is actively in charge of the relationship. He may assert his right
to x. If Beth still fails to discharge her obligation, he may press further claims, choose not to pursue
the matter, or even excuse her, largely at her own discretion.
Exercising rights is cumbersome and costly both to the parties and to society. It is thus to be
avoided when possible. Nonetheless, the power to claim rights distinguishes having a right from
This section draws heavily on (Donnelly 2003, ch 1, 2). (Nickel 1987, ch. 1-3), (Shue 1996, ch. 1, 2, Afterward), and
(Hayden 2001, ch. 16-22) cover similar ground.
1
2
simply being the (rights-less) beneficiary of someone else's obligation. "Having" (possessing) a right
is of special value precisely when one does not "have" (enjoy) the object of that right. Possessing a
right must not be confused with the respect it receives or the ease or frequency with which it is (or is
not) enforced.
Having a human right also should not be confused with enjoying the substance or object of that
right. The fact that people are not executed arbitrarily may reflect nothing more than a
government's lack of desire or limited capabilities. Even active protection may have nothing to do
with a right (title) not to be executed. Rulers may, for example, act out of their sense of justice,
instrumental calculations, or a divine injunction that does not endow subjects with rights. And even
a right not to be executed arbitrarily may rest on custom or statute rather than being human.
Human rights, as we shall see below, principally regulate relations between individuals, conceived of
as citizens, and "their" state. But as rights (entitlements) they do more than establish standards of
political legitimacy. They authorize and empower citizens to act to vindicate their rights.
Human rights are not just abstract values such as liberty, equality, and security. They are rights,
entitlements that ground particular social practices to realize those values. Human rights claims
express not mere aspirations, suggestions, requests, or laudable ideas but rights-based demands.
And in contrast to other grounds on which goods, services, and opportunities might be demanded -for example, justice, utility, divine donation, contract, or beneficence -- human rights are owed to
every human being, as a human being.
B. The Source and Substance of Human Rights
Turning from the "rights" to the "human" side of human rights, the central theoretical question is
how being human gives rise to rights. To use an older idiom, what in (our) "nature" gives us
"natural rights"?
Needs is a frequent answer. (e.g. Maslow 1970, xiii, Green 1981, 55, Bay 1982, 67, Pogge 2001
[1995], 193, Gordon 1998, 728) But as Christian Bay, a leading advocate of a needs theory of
human rights, admits "it is premature to speak of any empirically established needs beyond
sustenance and safety" (1977, 17). And how needs give rise to rights is obscure.
When we look more carefully, it appears that human rights rest instead on man's moral nature. They
are grounded not in a descriptive account of psycho-biological needs but in a prescriptive account of
human possibility. We have human rights not to the requisites for health but to those things
"needed" for a life worthy of a human being.
The "human nature" that grounds human rights is more a social project than a pre-social given.
Human rights are at once a utopian ideal and a realistic practice for implementing that ideal; a sort of
self-fulfilling moral prophecy. If the underlying moral vision of human nature is within the "natural"
limits of possibility, then implementing those rights will make real that previously ideal nature.
Human rights constitute individuals as a particular kind of political subject: free and equal rightsbearing citizens. And by defining the requirements and limits of legitimate government, they
constitute states of a particular kind.
Contemporary international human rights law presents one politically important vision of this
process. There is a surprising degree of international consensus -- at least at the inter-state elite level
-- on the list of rights in the 1948 Universal Declaration of Human Rights (see Morsink 1999) and
the 1996 International Human Rights Covenants. (http://www.ohchr.org/english/law/index.htm)
As of October 2004, the International Covenant on Economic, Social, and Cultural Rights had 150
3
parties and the International Covenant on Civil and Political Rights had 153 parties,
(http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf) representing 79 percent of the
total UN membership of 191. Few of the remaining states have expressed serious systematic
objections of principle.
These documents can be read as envisioning the mutual co-constitution of equal and autonomous
citizens and democratic states fit to govern such rights-bearing citizens. (Howard and Donnelly
1986, Donnelly 2003, ch. 3, 4, 11) The state must treat its citizens not just with concern for their
capacity to suffer and respect "as human beings who are capable of forming and acting on intelligent
conceptions of how their lives should be lived" but with equal concern and respect. (Dworkin 1977,
272) The list of rights in the Universal Declaration is readily derived from this conception. (See
Donnelly 2003, xyz)
C. Justifying Human Rights
International human rights law, however, is silent about its theoretical foundations, except for
scattered assertions that "all human beings are born free and equal in dignity and rights" (Universal
Declaration, Article 1) and that human rights "derive from the inherent dignity of the human
person" (Covenants, Preamble). The social contract tradition of political theory, which from Locke
through Rawls has been closely associated with natural rights ideas, likewise simply assumes that
they exist. Human rights are absent from the traditions of Western moral theory, among
deontologists and teleologists alike, from Plato and Aristotle, through Hume, Kant, Hegel, and
Nietzsche. Even today, general justifications of the idea or practice of human rights are peripheral
to most theoretical discussions. (The principal exception is (Gewirth 1982, 1996).)
For example, rights are absent from Kant's Grounding for the Metaphysics of Morals (1981) and the
first part of "Theory and Practice" (1983, 61-92), which consider our categorical duties under the
moral law; that is, right in the sense of rectitude. The second part of "Theory and Practice,"
however, addresses "political right." Here the discussion revolves around the rights of individuals,
considered as human beings, subjects, and citizens -- roughly what we would consider human rights
today. Yet even as systematic a philosopher as Kant assumes rather than argues for the existence of
these rights.
I have thus suggested (2003, 40-41, 51-53) that we understand human rights as what John Rawls
calls a "political conception of justice" rather than a comprehensive religious, philosophical, or moral
doctrine. Because a political conception of justice addresses only the constitutional structure of
society, defined (as far as possible) independent of any particular moral or religious theory, adherents
of different comprehensive doctrines may, despite other profound differences, come to an
"overlapping consensus." (1996, xliii-xlv, 11-15, 133-176, 385-396, 1999, 31-32, 172-173)
This has happened nationally in the West, where Christians, Muslims, Jews, and atheists, Kantians,
utilitarians, neo-Thomists, Critical Theorists, and post-moderns, socialists, libertarians, and many
others have come to endorse -- for varying reasons and with varying degrees of enthusiasm -- the
liberal/social-democratic welfare state. The consensus is overlapping (rather than complete) and
political (rather than moral or religious). Nonetheless, it is of immense theoretical and practical
importance. I would argue that something very similar explains the wide international legal and
political endorsement of human rights.
Human rights, thus understood, do not depend on any particular religious or philosophical doctrine.
They are, however, incompatible with fundamentally inegalitarian comprehensive doctrines. But any
egalitarian comprehensive doctrine could in principle adopt human rights as a political mechanism.
And in practice, a growing number of adherents of more and more comprehensive doctrines, both
4
religious and secular, have moved in this direction. For example, Muslims of various political
persuasions across the Islamic world have elaborated Islamic doctrines of human rights that are
strikingly similar to the Universal Declaration. This seems analogous to the process by which
Western Christians, who prior to the seventeenth century had never expressed their political
aspirations in terms of equal and inalienable rights, gradually came to endorse the rights-based
political societies of what have become modern liberal-democratic states.
D. Duty-Bearers of Human Rights
Henry Shue (1996, 51-64) argues that most rights, and all human rights, entail three kinds of duties:
not to deprive the right-holder of the enjoyment of her right; to protect against deprivation; and to
aid those whose rights have been violated. These duties, however, may be held by different actors.
In both national practice and international law, duties to protect and aid fall almost exclusively on
the state of which one is a national.2 Even deprivations by private individuals and groups are not
typically called human rights violations. If an irate neighbor blows up a house killing a dozen
people, it is murder. If irate police officers do the same thing, it is a violation of human rights. If
foreign soldiers do it during war, it may be a war crime.
One might imagine different allocations of duties. The rights of children in all societies are
implemented primarily through families. Many countries have significantly privatized old-age
pensions. In Singapore, children have certain legal obligations to support their aged parents. Claims
asserting duties of business enterprises not to deprive are appearing with some frequency today.
And it does not strain credulity to imagine a world in which regional and international organizations
acquire obligations to implement and enforce human rights.
In practice, however, virtually all human rights today are implemented and enforced by states
operating within recognized territorial jurisdictions. Although the holders of human rights are
universal, implementation and enforcement lie with states, which have duties to protect and aid only
their own citizens (and certain others under their territorial jurisdiction). Neither states nor any
other actors have either rights or obligations to protect or aid victims in other jurisdictions.3
2. A HISTORY OF HUMAN RIGHTS4
In the Western and non-Western worlds alike, politics and society typically have been organized on
hierarchical rather than egalitarian principles, around duties rather and rights, and around ascribed
roles rather than individuals. Human rights are a "modern" invention initially developed in
seventeenth and eighteenth century Europe and North America. The history of human rights is the
story of the (often violent) struggles through which political communities in the modern world have
constructed a particular vision of the political requisites of a life of dignity worthy of a human being.
For brief accounts of the (extremely weak) international mechanisms that support implementation of international
human rights treaties, see (Donnelly 2003, xyz, Forsythe 2000, ch. 3).
2
A limited legal exception has emerged for genocide. (Holzgref and Keohane 2003) and (Wheeler 2000) provide
overviews of the current state of mainstream discussions of 'humanitarian intervention."
3
See also (Ishay 2004), a lively and well-written history of "human rights" understood not as equal and inalienable rights
but as any relatively egalitarian and moderately universalistic moral or political ideas, and (Douzinas 2000), an eclectic
account combining critical legal theory with post-modern and psychoanalytic perspectives. (Shapiro 1986) offers an
excellent critical account of the liberal rights tradition.
4
5
A. Early Natural Rights Ideas
Greeks of the Classical era radically distinguished Hellenes (Greeks) from barbarians. Aristotle's
famous definition of "man" as a zoon politikon ("political animal") (Pol. 1253a2-3) held that a truly
human life was possible only in a polis ("city-state"). Outside the polis -- that is, among barbarians - there were, at best, creatures capable of becoming men. And rights, for which there is no term in
the language, were peripheral to Greek understandings of politics and society.
More universalistic ethical and religious doctrines attained greater prominence in Hellenistic Greece
and Rome. Nonetheless, Greeks and Romans continued to distinguish themselves categorically
from barbarians. (The Hebrew conception of the Jews as God's chosen people established a
functionally similar qualitative distinction.) And during both the Republic and the Empire, Romans
thought about and practiced politics with no reference to universal individual rights.
Medieval Christendom was ordered around hierarchical distinctions of birth, gender, religious status,
and feudal obligations. Natural law expressed natural right, in the sense of rectitude, not natural
rights in the sense of entitlements. (Strauss 1953, Donnelly 1980) The idea of equal and inalienable
rights held by all individuals against society and political rulers, had it been seriously contemplated,
would have been considered an abomination.
The decisive break came in the mid-seventeenth century. (Tuck (1979, ch. 1, 2) identifies important
medieval and Renaissance precursors.) The English Civil Wars provoked a wide range of assertions
of equal natural rights (Haller 1965, Sharp 1983), including proto-socialist claims by Winstanley and
the Diggers on behalf of the poor, oppressed people of England; Leveller tracts (Haller and Davies
1944) by Lilburne, Overton, and many others; and the famous debates at Putney in the fall of 1647
(Woodhouse 1938). In "high theory," natural rights featured prominently in Grotius, Selden,
Hobbes, and Pufendorf. (Tuck 1979) Locke's Second Treatise of Government (1689) put equal and
inalienable rights at the center of a prominent and influential political theory.
In practice, "universal" natural rights were interpreted in highly particularistic ways. Religious
toleration was extended only to some Christian sects. The political claims of high birth were
supplemented rather than supplanted by natural rights, which were further restricted by a substantial
property franchise. Women were "naturally" excluded. And none of this applied to "barbarians"
and "savages."
Nonetheless, natural rights did significantly undermine feudal and aristocratic privilege. And, as later
struggles have shown, the logic of equal and inalienable universal rights has a certain self-correcting
character to it, by shifting the burden of proof to those who base their own rights on shared
humanity to show why others do not qualify for those same rights. The oppressed and despised
have always had to force their way into politics, usually in the face of violent resistance. But
universal human rights have facilitated the entry of many oppressed groups -- beginning with the
bourgeoisie -- over the past three centuries.
B. Expanding the Scope of Natural Rights
Although natural rights were prominent in seventeenth century British political debates, the Bill of
Rights (1689) refers principally to "ancient rights and liberties" and the powers and prerogatives of
Parliament. It has thus often been said that the Glorious Revolution was neither. The American
and French Revolutions were more genuinely revolutionary, rooting sovereignty in the people and,
in their still famous declarations, basing political legitimacy explicitly on equal natural rights.
These projects too were in practice limited by, for example, slavery, the exclusion of women, and a
(reduced by still significant) property qualification for voting. And for all their impact, they were
6
more the exception than the norm. In the decades following the defeat of Napoleon, a conservative
backlash predominated, especially on the continent.
Nonetheless, nineteenth-century claims of human rights grew steadily more radical. And they
increasingly were advanced by the popular and working classes, now not only against royal and
aristocratic privileges but also against the bourgeois beneficiaries of previous natural rights claims.
This change is often presented as a shift in focus from civil and political rights to economic and
social rights. Such a reading, however, misrepresents both phases. Economic rights were central to
Locke's list of life, liberty, and property and Jefferson's life, liberty, and the pursuit of happiness.
Conversely, nineteenth-century radicals and progressives agitated as strongly for extension of the
franchise and equal civil and political rights as for new economic and social rights.
Disagreement on the substance of economic and social rights certainly was a central line of political
cleavage. Both groups, however, treated civil and political rights and economic and social rights as
interdependent and indivisible. Although natural rights "for all" in practice typically meant natural
rights "for us," both groups advocated the full range of (their own) civil, political, and economic
rights.
Our focus on human rights, however, should not obscure the fact that human rights continued to be
rejected categorically by religious and secular traditionalists of various sorts, who controlled Russia
and Austria-Hungary and remained powerful in most other countries. Romantics, historicists, and
many nationalists saw "nations" or "peoples" as organic moral entities that were both unequal and
superior to individual human beings. Scientific racism and Social Darwinism were powerful
nineteenth century movements. The leading work on natural rights in late nineteenth century
Britain was David Ritchie's (1895) neo-Hegelian critique. Etc.
In fact, even among progressives the hegemony of human rights is, at best, only a late twentieth
century phenomenon. Most nineteenth-century struggles for political, economic, and social equality
-- in sharp contrast to 1776 and 1789 -- were waged under a different banner. Bentham (2002)
famously described imprescriptible natural rights as "nonsense upon stilts." Many other radicals
rejected natural rights because they had been co-opted by conservative defenders of property. Marx
accepted them only as tactically and instrumentally valuable parts of the bourgeois political
revolution that would be left behind by socialism.
C. Internationalizing Human Rights
Dominant understandings of human rights have evolved primarily through new groups demanding
full political recognition of their equal humanity by creating rights-based remedies to the distinctive
"standard threats" (Shue 1996, 29-34) to their dignity. The twentieth century saw notable progress
in recognizing and responding to discrimination against women and racial and ethnic minorities. It
also introduced the victims of Western colonization into the ambit of human rights through the
right of peoples to self-determination.
In many ways, though, the most radical twentieth century innovation was the crafting of a system of
global human rights norms. The Universal Declaration presents itself as "a common standard of
achievement for all peoples and all nations," an aspiration given some real practical significance by
the development of international human rights law. By the late 1970s and 1980s, the language of
human rights had been reintroduced in most "progressive" political projects. With the collapse of
party-state socialism in Central and Eastern Europe and of developmental dictatorships and national
security states in the non-liberal Third World, a loosely liberal-democratic vision of human rights has
become hegemonic internationally. Today, no vision of political legitimacy systematically
7
incompatible with internationally recognized human rights can hope to be taken seriously
internationally. And human rights has become the leading language of resistance in all regions of the
globe.
There remain marginalized and despised groups (e.g. the disabled and homosexuals) whose claims to
equal rights continue to be denied. National implementation of international human rights norms
excludes many from effectively enjoying their human rights because of the accidents of birth. The
logic of universality, however, continues to be a powerful critical resource for combating
exclusionary understandings and implementations.
Universal human rights demand an unending struggle to realize an always evolving and receding
vision of human dignity. Equal concern and respect -- "All human rights for everyone," to use the
slogan of the High Commissioner for Human Rights in 1998, the fiftieth anniversary of the
Universal Declaration -- will always contain a certain utopian element, as we develop richer
substantive conceptions of human dignity and more fully inclusive conceptions of "all" human
beings. But it remains a realistic utopia (compare Rawls 1999, 7, 11-12, 126) that provides the
means (human rights) for its own realization.
3. THEORETICAL CONTROVERSIES
David Kennedy (2004, ch. 1) offers a brief but extensive and powerfully presented inventory of
common criticisms. Space restricts us here to arguments that challenge the universality of human
rights, their individualism, and the tendency to rely excessively on (human) rights in pursuing social
justice and human dignity. Although this is a reference work, my presentation eschews bland
neutrality. While laying out the principal alternative views, I stake out clear substantive positions on
these controversies.
A. Cultural Relativsm
Many authors contend that nonwestern societies have indigenous conceptions of human rights that
differ substantially from western/international understandings. (See e.g. Unesco 1949, Pollis and
Schwab 1980b, Thompson 1980, Hsiung 1985) Such arguments, however, typically confuse human
rights, in the sense of entitlements that we have simply because we are human, with broader notions
such as human dignity and social justice. For example, Asmarom Legesse argues that "distributive
justice, in the economic and political spheres, is the cardinal ethical principle that is shared by most
Africans." (1980, 127) Justice, however, involves much more than respecting rights. And the rights
recognized in traditional African societies were rooted in social status rather than shared humanity.
Although most nonwestern societies have emphasized duties of rulers in areas currently regulated by
human rights, those duties either were not correlative to rights or were tied to rights based on social,
legal, or spiritual status. (Donnelly 2003, ch. 5, 7) "Individuals possess certain obligations towards
God, fellow humans and nature, all of which are defined by Shariah. When individuals meet these
obligations they acquire certain rights and freedoms which are again prescribed by the Shariah."
(Said 1979, 73-74)
However we read the past, though, we should not emphasize it too much in interpreting and
evaluating the present. It may be true, for example, that "the view of society as an organic whole
whose collective rights prevail over the individual, the idea that man exists for the state rather than
vice versa and that rights, rather than having any absolute value, derive from the state, have been
themes prevailing in old as well as new China." (Kent 1993, 30) But culture is not destiny. It is
dynamic and contested, constantly changing through often violent conflicts for control over social
meanings. Contemporary Chinese are no more bound by such traditional understandings than
8
contemporary Europeans are bound by their medieval and early modern traditions, which were
equally distant from human rights.
Elsewhere I have argued (2003, ch. 4) that human rights have a structural rather than a cultural basis:
they respond to the distinctive threats to human dignity and the particular social and political
opportunities created by modern markets and moderns states. The universality of human rights is
thus functional and historically contingent. Markets and states have penetrated pretty much the
entire globe and human ingenuity has (so far at least) proved incapable of devising more effective
responses.
In any case, the crucial fact is that more and more individuals and groups across the globe have
come to interpret their religious, moral, and cultural values as supportive of, even demanding,
human rights. People with extremely varied cultural traditions -- consider, for example, India, Japan,
France, and South Africa -- have embraced practices such as freedom of religion, social insurance,
and the right to education. And these and most other rights in the Universal Declaration are
specified in sufficiently general terms to allow varied implementations that take into account local
culture, history, and tastes.
Human rights are neither tied to a particular culture nor incompatible with any egalitarian culture.
Politically active individuals and groups across the globe instead are increasingly grappling with the
meaning, for them, of "universal" human rights. (Compare Preis 1996, Nathan 2001, Svensson 2003)
The universality of human rights is constructed by individuals, groups, and national and international
political communities that have adopted the vision of equal and inalienable universal rights as a
standard of political legitimacy.
B. Further Relativist Challenges
Relativist arguments need not be based on culture. Many are political -- and, in practice, many
ostensibly cultural arguments are made by repressive elites whose behavior offends local cultural
values no less than international human rights norms.
During the Cold War, the universality of human rights was often challenged by arguments that
different political systems may appropriately select different subsets of the list of internationally
recognized human rights. A minority in the West (e.g. Cranston 1973, Bedau 1979) rejected or
radically downgraded economic and social rights. Such arguments, however, had no impact on, and
in fact were completely contradicted by, the practice of all European states (that is, the Western
mainstream). They were not even a very good description of the practice of the United States, the
Western country least sympathetic to economic and social rights. Analogous criticisms of civil and
political rights, however, did dominate both ideology and practice in the Soviet bloc and much of
the Third World.
Theoretically, though, there are no categorical differences between civil and political and economic
and social rights. (Shue 1996, ch. 1, 2, Donnelly 2003, 27-33) For example, "positive" and
"negative" rights do not match up with economic and social and civil and political rights. Periodic
and genuine elections, jury trials, and the presumption of innocence, for example, are positive goods
and practices that the state must provide. State restraint or inaction is at best secondary to realizing
these rights.
Today it is generally accepted that categorical subordination of one set of rights cannot sustain
political practices that support a plausible conception of human dignity. The 1993 Vienna
Declaration and Programme of Action (par. 5) thus presents all human rights as "indivisible and
interdependent." The underlying vision of human dignity is comprehensive and integrated, the
9
whole being much more than the sum of the parts, and each set of rights contributes essentially to
the realization of the other.
A different kind of relativist critique presents international human rights standards as an instance of
"false" universality. Cultural-political versions of such arguments usually involve a claim that human
rights are "a western construct with limited applicability." (Pollis and Schwab 1980a) Feminists
often present a more structural version of such arguments.
"Human rights are gender specific. … Both in application and in theory, human rights are based on
the male as the norm." (Peterson 1990, 305, Compare Agosin 2001) The historic marginalization of
women's rights issues is now widely appreciated and has become an important issue of remedial
action locally, nationally, and internationally. (Askin and Koenig 1999) Whether a deeper
masculinist bias remains -- for example, in defining the boundary between public and private, in the
adversarial nature of legal mechanisms of enforcement, or in the individualism of rights -- continues
to be a matter of considerable controversy.
C. Individualism and Groups
Many critics charge that human rights rest on a vision of "the isolated, lone individual, afraid of
other humans." (Felice 1996, 57, Compare Strauss 1953, 248, Douzinas 2000) In fact, however,
many internationally recognized human rights -- for example, to freedom of association, to marry
and found a family, to organize and bargain collectively, to freedom of religion, and to participate in
cultural life -- have a primary social dimension. Countries where internationally recognized human
rights are most fully implemented, such as Norway and the Netherlands, bear no resemblance to a
world of "possessive individualism." (Macpherson 1962) Strong, attractive, and inclusive
communities actually are facilitated by individual human rights. (Howard 1995) Elements of
atomistic individualism, such as the treatment of the poor in the United States, rest on and reflect
systematic human rights violations rather than an unusually high degree of implementation.
It is true, though, that all the rights in the Universal Declaration and the Covenants, with the
exception of the right of peoples to self-determination, are rights of individuals. The fact that much
of the suffering in the world is rooted in group membership has led many to advocate establishing
new collective human rights. (e.g. Marks 1981, Felice 1996) The most powerful arguments for such
rights appeal to a combination of protective grounds, rooted in a history of collective suffering, and
expressive grounds, based on the contribution of the group to the meaning of the lives of its
members.
Many groups with strong protective and expressive claims, however, are incapable of effective
agency, especially where the group is large, geographically dispersed, or heterogeneous. Consider,
for example, women almost everywhere and African-Americans in the United States. "Group
rights" that no one can exercise are largely an empty formula.
In addition, if a group right is to be of any real theoretical significance or practical value, it must not
be reducible to rights of the members of the group. (Compare Galenkamp 1993) The right to selfdetermination meets this condition. Most other ostensible group human rights do not.
The practical purpose of group human rights also is difficult to discern. For example, Felice claims
that "[group] rights based on race and ethnicity are necessary because of the often genocidal policies
of majority groups" (1996, 58). But can we really imagine a genocidal regime changing its behavior
because of collective human rights held by that group?
Perhaps the most serious problem, though, is that group human rights must be universal -- that is,
held by every group of that type -- but virtually all persuasive arguments for group rights depend on
10
particular contingent conjunctions of protective and expressive arguments. For example, even the
strongest defenders of minority rights do not claim that every ethnic minority everywhere ought to
have group rights, let alone the same rights.
Such arguments do not categorically exclude group human rights. An emerging exception would
seem to be indigenous peoples, whose way of life is fragile, under attack, and fundamentally
incompatible with mainstream legal and social institutions. Most oppressed groups, though, need
not new rights, either individual or collective, but a deeper commitment to, and perhaps new
strategies for implementing, already recognized human rights. It is hard to think of even a handful
of additional types of groups that can advance strong protective and expressive justifications, have
the capacity to exercise rights, and might achieve benefits with group human rights that cannot be
achieved by effective implementation of individual human rights.
D. Rights, Justice, and Politics
Human rights, however, do prioritize the rights of individuals, drawing attention away from
(although without denying) the legitimate interests and claims of states, societies, and families.
Human rights do deflect attention from duties, responsibilities, and other individual and societal
interests and values that are part of any adequate comprehensive account of the good life. We must
be careful, therefore, not to exaggerate the place of human rights in our political practices, let alone
in our understandings of morality or human flourishing.
Human rights are not a complete vision of social justice or human emancipation. They define (only)
a limited range of political and legal requisites for a particular understanding of a life of dignity. In
principle, this is unproblematic. Different moral, ethical, legal, and political practices appropriately
play different roles in a well-ordered society. In practice, however, human rights today often
squeeze out, rather than complement, other concepts, languages, and practices.
For example, in traditional families one's life chances are largely determined by family roles. Such
roles were, and remain, immensely fulfilling for many people. For others, though, they are highly
oppressive. One of the great human rights accomplishments of the twentieth century was to liberate
countless individuals, especially women, from the tyranny of the family. If families have changed
because of the choices of their members, human rights advocates see nothing requiring apology.
Unless equality and autonomy extend to the family, all other human rights are unacceptably
vulnerable.
But the ways we implement human rights often have socially and morally perverse unintended
consequences. For example, the substantial financial disincentives in the United States to caring for
elderly parents at home perversely weaken families and undermine important values of respect and
responsibility. More generally, when legal and political attention is focused narrowly on individual
rights -- especially in a litigious culture, which an emphasis on rights fosters -- non-state mechanisms
of provision frequently receive short shrift.
There is also an unfortunate tendency to shoehorn all important social goods into a human rights
framework, implicitly treating internationally recognized human rights as a one size fits all solution
for all social and political problems. This can choke off creative thinking about the meaning of and
strategies for realizing social justice or human emancipation. As the hegemony of human rights
insinuates itself more deeply in more and more places, we need to be especially sensitive to an
inappropriate imperialism of (human) rights.
Human rights are not the last word on, but rather than one vital part of, a defensible conception of
human emancipation or the good life. Claiming a human right does not necessarily halt legitimate
11
discussion. Human rights frequently conflict with one another. Different defensible
implementations of a particular right may have very different intended and unintended
consequences. In extreme cases, human rights may even appropriately give way to other values.
Human rights are not "considerations overriding all other considerations;" "absolutes to be
defended in all circumstances." (Brown 1999: 109, 110) Rights are only prima facie "trumps." The
International Covenant on Civil and Political Rights (Article 4) thus permits derogations from most
enumerated rights.
We must be careful to keep in view both sides of this fundamental, and inescapable, tension.
Human rights are in an important sense "above" or "prior to" ordinary politics. In many ways, their
point is to take these guaranteed goods, services, and opportunities out of the day to day give and
take of politics. But human rights represent a kind of politics, not a politically neutral
humanitarianism. They reshape the contours of, rather than eliminate, politics.
Human rights practices -- their respect no less than their violation -- both reflect and alter
distributions of power, opportunities, and values. The politics of human rights, and of
accommodating human rights with other social values and practices, thus must remain a central
theoretical and practical concern.
For most of the past three centuries, the politics of human rights has been emancipatory.
Historically, the claims of families, churches, ruling elites, societies, and states have, at least from the
perspective of human rights, been overemphasized. Even today, far more people suffer far more,
and far more intensely, from oppressive social, political, and legal duties than from oppressive or
limiting implementations of human rights. And we do want claims of human rights, ordinarily, in
their appropriate sphere, to put an end to, or at least radically restrict, further political discussion.
But all of this can be taken too far, with unfortunate consequences for human dignity and social
justice. We must we avoid what Michael Ignatieff (2001) calls human rights idolatry. And we must
recognize, even seek out, what David Kennedy (2004) calls the dark sides of virtue -- which are likely
to come to the fore unless we evaluate our human rights practices as critically and intensively as we
evaluate other moral, legal, and political practices.
Human rights are no more, but no less, than a standard of political legitimacy that specifies a set of
social and political practices that aim to establish a framework for equal and autonomous
individuals, acting separately and collectively, to make for themselves a world worthy of truly human
beings.
12
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